Publishing Agreements Explained: Representations, Warranties & Indemnification

When negotiating a video game publishing agreement, developers often focus primarily on financial terms, milestone schedules, and funding mechanics. While those elements are undeniably important, the clauses dealing with representations, warranties, and indemnification can be just as critical.

These provisions determine how legal and financial risks are allocated between the developer and the publisher. Although they are often represented as “standard” or “boilerplate”, overlooking them can have serious consequences, including exposure to significant or even unlimited liability.

What are warranties and representations?

A representation is a statement of a fact made at the time the contract is signed. For example, a developer may represent that it owns all intellectual property rights to the video game.

A warranty is a promise that a statement is true, or will remain true, throughout the duration of the agreement. For example, a developer may warrant that the video game does not infringe any third-party intellectual property rights.

Taken together, representations and warranties function as guarantees given by the developer to the publisher. If these guarantees turn out to be incorrect, they can trigger legal and financial consequences.

What is the indemnification clause?

Indemnification is a clause in which one party agrees to compensate the other party for damages, losses, or legal claims arising from a breach of a representation or warranty. In video game publishing agreements, indemnification obligations most often apply to to third-party claims.

A common example is intellectual property infringement. If a developer warrants that the game does not infringe third-party rights, but a third party later sues the publisher for copyright infringement, the indemnification clause may require the developer to cover the publisher’s damages, legal costs, and expenses resulting from that claim.

Why representations, warranties and indemnification clauses matter

From the publisher’s perspective, these clauses act as a safety net. Publishers do not want to be held financially responsible for risks they cannot control, such as how assets, music, or code were sourced during development.

From the developer’s perspective, indemnification can be a heavy responsibility. It often applies regardless of whether a breach was intentional or accidental. At the same time, providing reasonable guarantees can build trust and reduce the amount of due diligence required by the publisher.

Finding the right balance is essential.

Example of representations and warranties with an indemnification clause

Below is an example of the representations, warranties and indemnification clauses in a video game publishing agreement which we have seen in practice, so that you can recognise a similar clause in your own draft:

Common examples of representations and warranties in video game publishing agreements

Most video game publishing agreements include at least the following representations and warranties:

• The video game does not infringe on any intellectual property rights.
• The video game does not contain any unacceptable content
• The video game does not include any undisclosed easter eggs
• The developer has full authority to enter into the agreement.
• The Game does not contain malware, viruses, or hidden code.
• The Game meets the agreed specifications and platform requirements.
• The Developer will comply with applicable laws.

While many of these sound reasonable, the scope and wording of these promises matter greatly.

How to review and negotiate representations, warranties & indemnification clauses

Watch out for unrealistic representations and warranties

Publishers often request broad warranties that go beyond what a developer can realistically guarantee. For example, it is practically impossible to guarantee that a game will be completely free of bugs or defects.

Such absolute guarantees can create risk even where the developer has acted in good faith.

Limit warranties to knowledge and control

A good way to rebalance risk is to limit warranties to what the developer knows and controls. For instance, warranting that “to the best of the developer’s knowledge, the game does not infringe third-party rights” significantly reduces exposure to unknown risks.

This shift in wording makes a big difference: you are no longer responsible for unknown risks outside of your reasonable control, but you still provide the publisher with legal protection if you knowingly used third-party assets without permission.

Prevent unlimited liability risk

Many indemnification clauses place the full financial burden of third-party claims on the developer. In extreme cases, this can lead to unlimited liability, which can be devastating for small or independent studios.

Developers should therefore consider negotiating liability caps or exclusions. These mechanisms allow developers to provide protection to the publisher without taking on disproportionate financial risk.

Do not forget the publisher’s representations and warranties

Developers are not the only party who should make representations and warranties. Publishers should also provide assurances, such as:

• Having the authority to enter into the agreement;
• Complying with platform rules and apllicable laws;
• Ensuring that marketing activities do not infringe third-party rights.

Including publisher warranties creates a more balanced publishing agreement and ensures that both parties are accountable for their respective responsibilities.

Before you sign: summary and next steps

Representations, warranties, and indemnification clauses may look like boilerplate, but they carry real legal and financial consequences. Developers should be cautious about overpromising, should limit liability where possible, and should ensure that publishers also provide meaningful guarantees. With balanced terms, these clauses can provide mutual reassurance rather than one-sided risk.

Because these clauses often determine who bears the risk when something goes wrong, they deserve careful attention before signing, especially for studios that cannot absorb large legal claims.

If you’re unsure whether your contract exposes you to unlimited liability or unfair guarantees, it’s worth having an expert review it first.

In the next chapter, we look at bug fixing, technical support, and service-level agreements, and how post-release obligations can create legal and operational pressure for developers.